Spotts v. City of Kansas City, WD

Citation728 S.W.2d 242
Decision Date17 February 1987
Docket NumberNo. WD,WD
PartiesGail F. SPOTTS, John E. Spotts and Mildred Spotts, Appellants, v. CITY OF KANSAS CITY, Missouri, et al., Defendants. 37840.
CourtCourt of Appeal of Missouri (US)

Don B. Roberson, Kansas City, for appellants.

Richard N. Ward, City Atty., Jeffrey L. Hess, Asst. City Atty., Kansas City, for defendant City of Kansas City, Mo.

William L. Webster, Atty. Gen., Theodore L. Bruce, Asst. Atty. Gen., Jefferson City, for defendants Trooper T. L. Gray and Missouri State Highway Patrol.

Russell D. Jacobson, Kansas City, for defendants Kansas City Bd. of Police Commissioners and Officer Steven A. Wildman.

Thomas J. Cox, Kansas City, for defendant Sun Restaurants.

Sylvester Powell, Jr., Heilbron & Powell, Kansas City, for defendant Farmers Ins. Co.

Before GAITAN, P.J., and DIXON and TURNAGE, JJ.

GAITAN, Presiding Judge.

This is a civil action for money damages brought by plaintiffs-appellants, Gail F., John E. and Mildred Spotts against defendants-respondents, City of Kansas City, Missouri, T.L. Gray, The Missouri State Highway Patrol, Steven A. Wildman, The Board of Police Commissioners of Kansas City, Missouri, Sun Restaurants, Inc., Farmers Insurance Company, Inc., Mark Cecil and two other defendants, James Pruetting and Ernest Block. The latter two defendants settled before trial. The remaining aforementioned defendants, with the exception of Mark Cecil, filed motions to dismiss, which were sustained. Plaintiffs therefore went to trial only against Mark Cecil and received judgment in the amount of $5,200,000.00. Cecil did not appeal. Plaintiffs now appeal the trial court's dismissal of the aforementioned defendants. The judgment of the trial court is affirmed.

STATEMENT OF FACTS

This action arises out of an automobile accident that occurred on December 22, 1978. Plaintiff Gail F. Spotts was a passenger in a car driven by James N. Pruetting which was rear-ended by a van driven by Mark Cecil. As a result of the accident, Gail Spotts was rendered a paraplegic.

On the evening of the accident, Mark Cecil was a patron at defendant Sun Restaurants, Ltd. Plaintiffs allege that Sun continued to serve Cecil alcoholic beverages after he became intoxicated. Cecil drove his van from the bar and was stopped by Missouri Highway Patrolman, T.L. Gray, approximately 15 minutes before the accident. Gray ordered Cecil into the trooper's car. Defendant Gray issued Cecil a citation for driving with expired license plates and then released him from custody, notwithstanding the fact that Cecil allegedly was in an obviously intoxicated condition. Thereafter, Cecil drove toward the scene of the accident.

Approximately 15 minutes before the accident, there was another accident on N.E. 48th Street involving Ernest Block and William Wurtz. The Block vehicle rear-ended the Wurtz vehicle, causing the Wurtz vehicle to flip over on its side blocking the roadway at the bottom of a hill on N.E. 48th Street. This accident occurred at 7:30 p.m.

Defendant Steven A. Wildman, a Kansas City, Missouri policeman, responded to the scene of the Wurtz accident and immediately placed flares and barricaded N.E. 48th Street east of the Wurtz accident on the top of the hill. However, defendant Wildman did not barricade N.E. 48th Street west of the Wurtz accident, or place any flares to warn eastbound traffic that the obstruction was blocking traffic and causing a back up of approaching vehicles.

Pruetting drove his car eastbound on N.E. 48th Street and, after cresting the hill, he stopped west of the Wurtz accident. While Pruetting was stopped in traffic, the Cecil vehicle came over the hill and rear-ended the Pruetting vehicle. As a result The plaintiffs' claims against the defendants 1 may be summarized as follows:

plaintiff Gail F. Spotts sustained disabling injuries, causing her to be a paraplegic. This accident occurred at approximately 7:43 p.m. (13 minutes after the first accident).

The defendants filed separate motions to dismiss or for summary judgment primarily based upon the following grounds:

1. City of Kansas City, Missouri Sovereign immunity.

2. Trooper T.L. Gray Public duty doctrine.

3. Missouri State Highway Patrol Sovereign immunity.

4. Officer Steven A. Wildman Official immunity.

5. Board of Police Commissioners Sovereign immunity.

6. Sun Restaurants, Ltd. Carver v. Schafer, 647 S.W.2d 570

(Mo.App.1983), is not retroactive.

Our discussion of the issues will be by category as they apply to the defendants herein.

SOVEREIGN IMMUNITY

In 1978, § 537.600 RSMo was enacted to provide public entities with such sovereign immunity as existed at common law prior to September 12, 1977, 2 "except to the extent waived, abrogated or modified by statutes," and with the following two exceptions: (1) injuries resulting from negligent operation of motor vehicles by public employees, and (2) injuries resulting from the dangerous condition of a public entity's property. 3

With this in mind, we consider plaintiffs' claims against each defendant.

1. K.C. Missouri

Under common law as it existed prior to September 12, 1977, a municipality In this case, the obstruction in the street was the emergency vehicles and the aftermath of the first accident, which police were attempting to remove. The essence of plaintiffs' claim is that the City allegedly failed to redirect and regulate traffic to avoid the obstruction resulting from the first accident. It is not the obstruction itself, that plaintiffs allege caused the second accident involving Gail Spotts. We feel, therefore, that plaintiffs' claim is more analogous to the cases involving regulation of traffic than to the cases involving obstructions in the street. See e.g., Watson v. Kansas City, 499 S.W.2d 515 (Mo. banc 1973); Gillen v. City of St. Louis, 345 S.W.2d 69 (Mo.1961). Regulating traffic at the scene of an accident is a governmental act which the City performs for the common good of all. We therefore hold that the City is protected by sovereign immunity.

                was immune from suit only for the negligent performance of its governmental as distinguished from its proprietary functions.  See Burke v. City of St. Louis, 349 S.W.2d 930, 931 (Mo.1961).  Plaintiffs claim that the City had a duty to keep its streets in a reasonably safe condition, free of obstructions.  A breach of this duty is not protected by sovereign immunity.   See German v. Kansas City, 512 S.W.2d 135, 142 (Mo. banc 1974), quoting, Myers v. City of Palmyra, 355 S.W.2d 17, 18-19 (Mo.1962).  On the other hand, the regulation of traffic is a governmental function, the negligent execution of which is protected by sovereign immunity.  See Gillen v. City of St. Louis, 345 S.W.2d 69 (Mo.1961)
                
2. Missouri State Highway Patrol (MSHP)

Plaintiffs' claims against MSHP is based on respondeat superior for the alleged negligence of Trooper Gray in permitting Cecil to drive in an intoxicated condition. Plaintiffs argue that the sovereign immunity of MSHP has been statutorily waived by § 105.710(5) RSMo Cum.Supp.1982 (repealed) which reads as follows:

To the extent the provisions of this section allow a monetary recovery against the state of Missouri, the doctrine of sovereign immunity is waived, but to no greater extent.

Although this statute was repealed in 1983, plaintiffs contend that it should be applied retroactively against MSHP. Plaintiffs argue that Art. I § 13 of the Missouri Constitution prohibiting retroactive application of new statutes protects only citizens and does not protect the state. This issue was decided adverse to plaintiff's position in State Ex. Rel. Missouri Highway v. Appelquist, 698 S.W.2d 883, 898 (Mo.App.1985). There it was held that § 105.710 was not to be applied retroactively. Consequently, MSHP is protected by sovereign immunity.

3. Board of Police Commissioners

Plaintiffs claim that the Board is liable under respondeat superior for the negligence of its officer, Steven Wildman, in not removing, barricading or warning of the obstruction to traffic on N.E. 48th Street. Plaintiffs claim that the Board waived its sovereign immunity pursuant to §§ 71.185 and 537.600(1) RSMo 1978 by purchasing liability insurance. The Board admits that it did have automobile liability insurance, but no liability insurance for tort claims. Plaintiffs argue that their claim arises out of the use, operation and maintenance of Wildman's automobile since he failed to use his vehicle to barricade traffic.

Section 71.185.1 RSMo provides in part:

Any municipality engaged in the exercise of governmental functions may carry liability insurance and pay the premiums therefore to insure such municipality and their [sic] employees against claims or causes of action for property damage or personal injuries, including death, caused while in the exercise of the governmental functions ...

Initially we note that any waiver of sovereign immunity should be construed strictly. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 834 (Mo. banc 1985). Section 71.185.1 applies only to "municipalities." In Beiser v. Parkway School Dist., 589 S.W.2d 277, 280 (Mo. banc 1979), the court held that a While a municipality may be a municipal corporation ... not all municipal corporations are municipalities. (citation omitted) Even assuming that a school district may be a municipal corporation for certain limited purposes, it does not follow that a school district is, therefore, a "municipality" for the purposes of the statute [§ 71.185] in question.

school district is not a "municipality" within the meaning of § 71.185 RSMo stating:

Beiser, at 280.

Although the Board may provide police protection for the municipality of Kansas City, it continues to be obligated, as a legal subdivision of the state. See State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 514 (1955) ("The statute...

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